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As filed with the Securities and Exchange Commission on March 30, 2001
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FutureLink Corp.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 95-4763404
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2 SOUTH POINTE DRIVE
LAKE FOREST, CALIFORNIA 92630
(Address of Registrant's Registered Offices) (Zip Code)
2001 VSI EMPLOYEES RESTRICTED STOCK PLAN
(Full Title of the Plan)
Howard E. Taylor
Chief Executive Officer
FutureLink Corp.
2 South Pointe Drive
Lake Forest, CA 92630
(Name and Address of Agent For Service)
(949) 672-3000
(Telephone Number, Including Area Code, of Agent for Service)
Please address a copy of all communications:
John F. Della Grotta, Esq. Thomas R. Pollock, Esq.
Stephen D. Cooke, Esq. Paul, Hastings, Janofsky & Walker LLP
Paul, Hastings, Janofsky & Walker LLP 399 Park Avenue, 31st Floor
695 Town Center Drive, 17th Floor New York, New York 10022-4697
Costa Mesa, California 92626-1924 Tel: (212) 318-6000
Tel: (714) 668-6200 Fax: (212) 319-4090
Fax: (714) 979-1921
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered (1) Per Share (2) Offering Price Fee
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Common Stock,
Par Value $0.0001
Per Share 78,947 shares $0.54 $42,631.38 $10.66
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(1) Represents shares of common stock issuable under the 2001 VSI Employees
Restricted Stock Plan (the "Plan"). In addition, pursuant to Rule 416(c)
under the Securities Act of 1933, this registration statement also covers
an indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein.
(2) Calculated pursuant to Rules 457(c) and 457(h)(1), based on the average of
the high and low sale prices ($0.54 per share) of the Common Stock of the
Company on the Nasdaq Stock Market on March 28, 2001.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428(a)(1) under the Securities Act and the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated into this Registration
Statement and made a part hereof by this reference:
(a) The annual report on Form 10-KSB of FutureLink Corp. (the
"Company") that contains audited financial statements for the
fiscal year ended December 31, 1999, filed with the Securities and
Exchange Commission (the "Commission") on March 29, 2000, as
amended by Form 10-KSB/A filed with the Commission on May 31, 2000
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) The prospectus dated February 14, 2001, that contains audited
financial statements for the fiscal year ended December 31, 1999,
filed with the Commission on February 16, 2001 pursuant to Rule
424(b) under the Securities Act of 1933, as amended;
(c) The quarterly report on Form 10-QSB of the Company for the
quarterly period ended September 30, 2000, filed with the
Commission on November 14, 2000 pursuant to the Exchange Act;
(d) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Registrant document referred to in (a) above; and
(e) The description of the Company's common stock contained in the
Company's registration statement on Form 8-A filed with the
Commission on October 25, 1998 under Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of
updating such description.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents with
the Commission.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation law provides, in
summary, that directors and officers of Delaware corporations are entitled,
under certain circumstances, to be indemnified against all expenses and
liabilities, including their capacity as a director or officer, if they acted in
good faith and in a manner they reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful; provided that no indemnification may be made against expenses in
respect of any claim, issue or matter as to which they shall have been adjudged
to be liable to the Company, unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, they are fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper. Any such indemnification may be made by the
Company only as authorized in each specific case upon a determination by the
shareholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct.
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The Company's Certificate of Incorporation provides that to the fullest
extent permitted by the laws of the State of Delaware, as the same may be
amended from time to time, a director of the Company shall not be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director.
The Certificate of Incorporation and By-Laws of the Company provide for
indemnification of its directors and officers to the fullest extent permitted by
Delaware law, as the same may be amended from time to time.
In addition, the Company maintains liability insurance for its directors
and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
The exhibits filed as part of this Registration Statement are as
follows:
Exhibit Number Description of Exhibit
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4 2001 VSI Employees Restricted Stock Plan
5 Opinion of Paul, Hastings, Janofsky & Walker LLP
23.1 Consent of Independent Auditors
23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included in
the opinion filed as Exhibit 5)
24 Power of Attorney authorizing Howard E. Taylor to sign
amendments to this Registration Statement on behalf of
officers and directors of the Company (contained on Signature
Page of Registration Statement)
ITEM 9. UNDERTAKINGS
(1) The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material informatio with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in
paragraphs (a)(i) and (a)(ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) To remove from registration by means of a post- effective
amendment any of the securities being registered that remain
unsold at the termination of the offering.
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(2) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lake Forest, State of California, on this 29th day of
March, 2001
FUTURELINK CORP.
By: /s/ HOWARD E. TAYLOR
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Howard E. Taylor
President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Howard E. Taylor and James J. Sullivan,
and each of them singly, such person's true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for such person and
in such person's name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the U.S.
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Name Title Date
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/s/ HOWARD E. TAYLOR President and Chief Executive Officer March 29, 2001
- ------------------------------ (Principal Executive Officer)
Howard E. Taylor
/s/ RICHARD M. WHITE Executive Vice President and Chief March 29, 2001
- ------------------------------ Financial Officer (Principal
Richard M. White Financial and Accounting Officer)
/s/ MARSHALL S. GELLER Director March 29, 2001
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Marshall S. Geller
/s/ MICHAEL S. FALK Director March 29, 2001
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Michael S. Falk
/s/ F. BRYSON FARRILL Director March 29, 2001
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F. Bryson Farrill
/s/ TIMOTHY P. FLYNN Director March 29, 2001
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Timothy P. Flynn
/s/ GLEN C. HOLMES Director March 29, 2001
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Glen C. Holmes
/s/ PHILIP R. LADOUCEUR Executive Chairman and a Director March 29, 2001
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Philip R. Ladouceur
/s/ JAMES P. McNEIL Director March 29, 2001
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James P. McNeil
/s/ GERALD A. POCH Director March 29, 2001
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Gerald A. Poch
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EXHIBIT INDEX
Exhibit Number Description of Exhibit
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4 2001 VSI Employees Restricted Stock Plan
5 Opinion of Paul, Hastings, Janofsky & Walker LLP
23.1 Consent of Independent Auditors
23.2 Consent of Paul, Hastings, Janofsky & Walker LLP
(included in the opinion filed as Exhibit 5)
24 Power of Attorney authorizing Howard E. Taylor to
sign amendments to this Registration Statement on
behalf of officers and directors of the Company
(contained on Signature Page of Registration Statement)